Stephen Hans Blog by cjleclaire
Employment and Labor Law Attorneys
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Right to Disconnect Bill in NYC
by cjleclaire
Apr 03, 2019 | 2859 views | 0 0 comments | 103 103 recommendations | email to a friend | print | permalink

Should Employees Have the Right to Disconnect from Work After Hours?

In 2017, a “Right to Disconnect” law passed in France, and a similar bill was introduced to the NYC Council last March. It is currently under consideration.

Living in the Information Age where we are “plugged in” to our electronic devices and spend a lot of time responding to electronic communications poses new challenges. Many businesses use texts, emails, websites and various social media outlets for communication, marketing and as a means of doing business. Consequently, the line between work and private life has become somewhat blurred.

What are employers’ rights? What are workers’ rights? Electronic communications are a new evolving area of law. Any time spent working on a job in addition to the standard 40 hours a week is subject to overtime pay for non-exempt employees.

As with any area of emerging law, there are opposing views. As an employer, you must be aware of new laws that could affect how you run your business.

What Terms and Conditions Does the NYC Right to Disconnect Bill Include?

According to the National Law Review, NYC Council hearings have begun.

The proposed law would require employers with 10 or more employees to do the following:

  • Adopt written policy governing the use of electronic devices and other digital communications outside of work hours
  • Establish the usual work hours schedule for each class of employee
  • Establish the categories of paid time off available to employees
  • Prohibit retaliation against employees who exercised or attempted to exercise their right to disconnect

Remedies against violations would include the following fines:

  • $250 for each instance that an employee would be required to access a work-related electronic communication outside of usual work hours
  • Unlawful retaliation would be subject to full compensation lost, $500, and appropriate equitable relief
  • Unlawful termination would be subject to full compensation lost, $2,500, and appropriate equitable relief, including reinstatement

Whether this bill has enough support to pass the NYC Council remains to be seen, but it is wise to stay apprised of what happens. If it passes, numerous businesses would be affected. The fact that the bill has been proposed is indicative of an issue that may currently exist with employees who want to keep their non-work and work schedule separate.

If you are an employer with questions or concerns regarding employment law issues, our attorneys at Stephen Hans & Associates can provide seasoned legal guidance.

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NY DOL Withdraws Predictive Scheduling Decision
by cjleclaire
Apr 03, 2019 | 2303 views | 0 0 comments | 87 87 recommendations | email to a friend | print | permalink

Predictive Scheduling Changes No Longer Going into Effect

Recently, we released a blog about predictive scheduling changes that the New York Department of Labor had proposed putting into effect. Their proposed changes would have required employers to pay employees for schedule changes that involved reporting to work, for an unscheduled shift (not scheduled 14 days in advance), a cancelled shift, and pay for being on call.

However, pressure from employers resulted in the NY DOL withdrawing its decision to move forward with these changes. The predictive scheduling rules would have resulted in additional costs and rigidity that would have been a significant problem for employers.

The most encouraging aspect of this outcome is that employers were able to express their disagreement, and their concerns received attention. It appears that the DOL agreed that the employers’ concerns had merit.

However, the DOL’s change in decision does not preclude future attempts on the part of the NY Legislature to raise the scheduling issue again.

Scheduling Rules that Are Still in Effect

New York State has scheduling limitations and required payments that remain in effect. They include:

  • Spread of hour pay when employees work a split shift or a shift that extends more than 10 hours from the beginning of the first shift through the final shift. The split shift and spread of hours pay is equal to one hour at the minimum wage rate. (NY State Department of Labor)
  • Employees in certain industries must receive split shift payment for working nonconsecutive hours.
  • Employers must provide call-in pay for employees working less than three or four hours
  • Employers may not schedule employees to work more than seven days in succession.

Our attorneys at Stephen Hans & Associates keep up-to-date with wage and hour law and other employment law changes. We are glad to answer your questions. We have decades of experience assisting employers with many different types of employment related issues.

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Facebook Advertising Algorithms Allowed Advertisers to Discriminate
by cjleclaire
Apr 03, 2019 | 2554 views | 0 0 comments | 109 109 recommendations | email to a friend | print | permalink

In November of 2018, we wrote a blog about allegations that Facebook faced in ad discrimination lawsuits against women.

After 18 months of negotiations, Facebook recently reached a settlement that included paying $5 million. According to USA Today, Facebook primarily derives its income from advertising, which comprises most of the $56 billion in revenue earned last year. Their settlement incorporated provisions for aggressive oversight and their commitment to removing categories from the Facebook platform that enabled advertisers to discriminate based on protected classes.

Not only must Facebook deal with lawsuits, it also must deal with investigations by government entities. The State of Washington conducted an investigation of its ad platform that lasted 20 months, and the company settled this issue in July. The Department of Housing and Urban Development (HUD) is also conducting an investigation.

Ad Platform Allegations

The company’s ad platform contained targeting tools that advertisers could use to focus advertising on specific demographics. However, in areas such as jobs or housing and development, ad targeting enabled Facebook clients to discriminate and not send ads to certain groups of individuals. They could exclude individuals over the age of 40 (age discrimination) or those in particular ethnic or racial groups, such as African Americans, Hispanics and Jews and individuals of a particular sexual orientation.

Advertising that promoted credit cards, renting, housing or job interviews could exclude protected classes and deny them the same opportunities as other demographics.

Settlement Details

Although plaintiffs reached a settlement with Facebook in various lawsuits, they have continued to pursue legal action against the companies that initiated the discriminatory advertising.

Facebook’s settlement terms include having the National Fair Housing Alliance, the ACLU and the Communication Workers of America meet with the company twice yearly for three years to monitor progress. They will be able to identify issues by testing the ad platform. In addition, Facebook has agreed to study and evaluate potential prejudice that its algorithms have incorporated into targeting for ads.

Facebook has already eliminated targeting options for certain types of ads, which will no longer incorporate the option of targeting audiences based on age, genre or zip codes.


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Will NYC Pass a Paid Vacation Bill?
by cjleclaire
Mar 11, 2019 | 4701 views | 0 0 comments | 349 349 recommendations | email to a friend | print | permalink

Two Weeks of Employee Paid Vacation

A paid vacation bill is under consideration and Mayor De Blasio has made a pledge to support the bill. It appears the NYC Earned Safe and Sick Time Act will serve as a model for the new paid vacation bill.

The National Law Review stated that no other city or state in the nation has a law like this. New York City would be the first if the law passes.

The paid vacation bill would apply to private sector employers, who have at least five employees, and the requirement to receive the benefit is that the employees must work at least 80 hours a year.

What Are the Requirements of the Earned Safe and Sick Leave Law?

New York City's Paid Safe and Sick Leave Law has the following provisions:

§  Employers with five or more employees, who work more than 80 hours per calendar year in NYC, must provide paid safe and sick leave to employees.

§  Safe and sick leave accrues at a rate of one hour of leave for every 30 hours worked, up to 40 hours per calendar year.

§  Accrual begins on the employee's first day of employment

§  Employees can begin using accrued leave 120 days after their first day of work

§  Employers with fewer than five employees must provide unpaid safe and sick leave.

Paid Family Leave, Another Paid Time-Off Benefit in NY

In addition to the above law, New York also has the new Paid Family Leave benefit, which was passed into law. This paid time off enables employees who are sick, have a sick family member or who have a newborn baby to take paid time off from work. As of 2019, paid family leave is now 10 weeks (previously it was eight weeks) and the average weekly wage for the leave has increased from 50 to 55 percent.

At Stephen Hans & Associates, we work with employers to help them understand and comply with employment laws and deal with employment issues.

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Marijuana Legalization in New York
by cjleclaire
Mar 06, 2019 | 6942 views | 0 0 comments | 369 369 recommendations | email to a friend | print | permalink

Governor Cuomo Is Supporting the Legalization of Marijuana

If the legislature passes the Cannabis Regulation and Taxation Act, Governor Cuomo believes it could generate $300 million in revenue a year for New York.

The legislature is expected to vote on legalizing marijuana on April 1, 2019, and if passed, marijuana could go on sale in April 2020.

Taxes that the law would generate include a 20 percent state tax and two percent local tax on sales from wholesalers to resellers. Taxation for growers would be by the gram.

How Would the Legalization Potentially Affect Business Employers?

While drug testing is more prevalent in the workplace today, testing for marijuana is more complex than testing for alcohol. Also, there are no uniformly established THC levels to determine what would constitute drug impairment under the influence of marijuana. As it stands, observation is the best form of detection and that would include slurred speech, slow reactions, dilated pupils, impaired body movements, poor short-term memory and other physical signs. (Reference: Buffalo Business First)

If you have concerns about employment issues, our attorneys at Stephen Hans & Associates are glad to advise you. We represent employers in employment related disputes and issues.


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NYC Bans Polystyrene Takeout Containers and Coffee Cups
by cjleclaire
Feb 19, 2019 | 10642 views | 0 0 comments | 383 383 recommendations | email to a friend | print | permalink

Judge Upholds the 2013 Law Banning Polystyrene for Takeout Containers and Coffee Cups

In 2019 restaurants must begin phasing polystyrene cups and containers out of use. This change is a result of a ruling that came down from an appeal that had challenged the new law in 2013. The appeal had suspended implementation of the law until the court rendered its decision. One of the main arguments alleged by parties challenging the law was that it was not difficult to dispose of Styrofoam products. Research that parties had presented and included in the appeal supported this argument.

NYC Bans Polystyrene Takeout Containers and Coffee Cups

Facts of the Case

In 2013, the Restaurant Action Alliance (RAA) argued that 40 to 60 percent of sales involved food or beverages served in polystyrene containers and that adopting other alternatives would raise costs by $11.2 million a year.

A pilot program run in Manhattan by restaurants, retailers and plastics manufacturers provided evidence to the Supreme Court in Manhattan that had resulted in halting the enactment of the law in 2015. However, the New York City government conducted its own research and released a report in 2017 that resulted in convincing Supreme Court Judge Margaret Chan to put the law into effect.

According to information published in a Restaurant Business article, restaurants will face a fine in July 2019 if they have not worked out an alternative to the polystyrene cups and containers.

Will Plastic Straws Be Next?

In May of 2018, a NYC council member proposed the idea of banning plastic straws to cut down on plastic pollution. A number of cities in various states such as Malibu, California and Miami, Florida have already banned plastic straws. Davis and San Luis Obispo in California require that restaurants do not provide customers with straws unless requested. Customers requesting straws must receive paper straws. At this time, the elimination of straw use in Europe is more widespread than in North America.

McDonald’s has pledged to continue its research for alternatives to plastic straws.

While it has yet to happen, New York City restaurant owners may have to contend with this change as well.

Our attorneys at Stephen Hans & Associates work with restaurant owners to help them comply with labor laws affecting their industry and to deal with employment issues.

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Legal Concerns for New York Restaurant Owners
by cjleclaire
Feb 14, 2019 | 8867 views | 0 0 comments | 450 450 recommendations | email to a friend | print | permalink

If you’re opening a new restaurant in New York City or the surrounding area, there are certain legal requirements you must put in place. You will need to choose a business entity and get your licenses and permits. You must address health and safety issues (ventilation, garbage removal, sanitation, etc.) before opening your restaurant. You will also need to purchase insurance.

When all the above is said and done, you still have the matter of employees. An employment attorney is a vital resource who can help ensure you are up to speed with New York employment laws.

New York Employment Laws

You will have to know which employees must be paid for overtime, the rules about paying tipped employees and the laws for employing minors. You will have to verify the legal work status of every employee at your restaurant and fill out an I-9 form for each employee.

Before you begin the hiring process, it is wise to know what questions you should avoid. Our blog on job interviews will give you a basic idea but to ensure you have all the information, it is wise to consult with an attorney.

Our lawyer can assist you by reviewing your job application to ensure it does not contain illegal questions. You also need to understand how to check references without making illegal inquiries.

It is wise to devise an employee handbook and ensure it is legally sound.

You must set up sexual harassment training for all of your employees based on recent New York State law.

If you feel overwhelmed about the laws involved with opening a restaurant, you are not alone. You can avoid some employment nightmares at the outset by consulting with an experienced New York employment attorney.

At Stephen Hans & Associates, we work with restaurant owners to help them comply with labor laws and to deal with employment issues.

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Certain questions are taboo for employers to ask in a job interview. The most obvious ones are questions that could be regarded as discrimination. If you ask these types of questions, you could be held liable if a discrimination lawsuit is brought against you. Do not ask questions that intimate at anything to do with age, race, color, national origin or birthplace, religion, disability, genetic information, gender/sex or marital/family status/pregnancy. (EEOC)
by cjleclaire
Feb 14, 2019 | 9029 views | 0 0 comments | 442 442 recommendations | email to a friend | print | permalink

2019 Is Here with New Salary Thresholds

The New York State overtime salary threshold draws the line between exempt salaried workers, who must be paid for overtime, and those non-exempt workers, who do not have to be paid for overtime.

For an employee to qualify for the Administrative employee exemption, the following tests must be met, according to NY State Labor Laws:

  • The employee primarily has the duty of performing office or non-manual fieldwork that relate directly to management policies or general operations.
  • The employee exercises discretion and independent judgment customarily and on a regular basis.
  • The employee regularly and directly assists the employer. Or, the employee works in an executive or administrative capacity or performs under general supervision work that is specialized, technical or requires special training, knowledge or experience.
  • The employer pays the employee on a salary basis.

Any exempt employee working over 40 hours a week and receiving less than a certain monetary number in salary must be paid for overtime work. However, based on location and year, the salary threshold number varies. Employees receiving the salary threshold amount or a lower salary must be paid for overtime work.

The following are the salary thresholds for NYC, other areas and remaining areas statewide:

New York City Salaries

  • After December 31, 2018 $1,1012.50 per week
  • After December 31, 2019 $1,125.00 per week

Nassau, Suffolk and Westchester Counties Salaries

  • After December 31, 2018 $900 per week
  • After December 31, 2019 $975 per week
  • After December 31, 2020 $1050 per week
  • After December 31, 2021 $1,125 per week

The Remainder of New York State

  • After December 31, 2018 $832 per week
  • After December 31, 2019 $885 per week
  • After December 31, 2020 $937.50 per week

Do You Have Wage and Hour Concerns?

At Stephen Hans & Associates, we can address your concerns and provide seasoned legal guidance. Our clients benefit from our decades of employment law defense experience.

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Age Discrimination: ADEA Becomes More Far Reaching
by cjleclaire
Jan 11, 2019 | 12880 views | 0 0 comments | 675 675 recommendations | email to a friend | print | permalink

The Supreme Court Rules that ADEA Applies to All Government Levels

In October 2018, the Supreme Court reached a decision that made the Age Discrimination in Employment Act (ADEA) cover a broad scope of state and local employment. The ADEA prohibits age discrimination against employees who are 40 or older, making it illegal for certain size businesses.

Prior to the ruling, state and local governments that employed 20 or less employees could lay-off or terminate employees based on age without facing any repercussions.

The Case that Changed the Application of the ADEA

In the case Mount Lemmon Fire District v. Guido, U.S., No. 17-587 two firefighters brought a case against the Mount Lemmon, Arizona, Fire District based on age discrimination. Their ages were 46 and 54 and they alleged that the fire department laid them off based on age. The defense did not deny that age was the reason but instead argued that the anti-age discrimination law didn’t apply to them because they had too few employees.

The court decided that the intent of the law was not to clarify but to add the category of “a state or political subdivision of a state” as being subject to the ADEA. As a result, state and local governments irrespective of their size must follow the Age Discrimination in Employment Act.

ADEA Claims and Predictions

Currently, approximately 22 percent of claims filed with the Equal Employment Opportunity Commission (EEOC) are age discrimination claims. In addition, an increasing number of employees, who are older than 67 are continuing to work. This fact indicates that age discrimination claims are likely to remain a major focus for the EEOC.

Do You Have Questions about Employment Law?

Keeping up with changing laws is vitally important for operating a business in today’s world.

If you have questions, our attorneys at Stephen Hans & Associates are glad to advise regarding your concerns or represent you in employment related disputes.

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A Look Back on Sexual Harassment Charges in 2018
by cjleclaire
Jan 11, 2019 | 11821 views | 0 0 comments | 575 575 recommendations | email to a friend | print | permalink

EEOC Sexual Harassment Charges Statistics Surged

The increase in sexual harassment lawsuits brought by the EEOC was 50 percent higher in 2018 than they were in 2017. The EEOC filed 66 harassment lawsuits, and of those, 41 involved allegations of sexual harassment.

New charges filed with the EEOC that alleged sexual harassment were more than 7,500, which was 12 percent higher than in 2017.

The EEOC recovered close to $70 million in settlements of cases that involved sexual harassment issues, which compared with the $47.5 million in settlements recovered for 2017.

As the new year begins, we often look back to the previous year, reflect on the changes and hone our perspectives toward progress for the coming year.

Facts about the #MeToo Movement and Its Effect on Sexual Harassment

In October of 2017, rape and sexual misconduct allegations against Harvey Weinstein were the springboard that propelled the #MeToo movement. Sexual harassment took center stage in the American media’s spotlight.

The #MeToo Movement is a movement against sexual harassment and assault. Tarana Burke was the social activist who coined the “Me Too” expression in 2006, and the phrase reappeared in 2017 when actress Alyssa Milano used it on Twitter.

The #MeToo movement has been a driving factor in the heightened focus on sexual harassment cases. According to the Washington Post, similar to the celebrity driven #MeToo movement, cases filed with the EEOC saw an increase in sexual harassment cases filed by employees from small businesses — mom-and-pop and everyday companies.

The #MeToo movement has increased society’s awareness of the problem and also made it more acceptable for victimized employees to speak out and report abuse. It has made filing claims with the EEOC or a state agency more socially acceptable.

While charges for other types of discrimination dropped in 2018, charges for sexual harassment rose significantly. This focus does not appear to be losing momentum any time soon.

Incorporate Anti-Sexual Harassment Policies and Actions into Your Business in 2019

If you have questions, our attorneys at Stephen Hans & Associates are glad to advise regarding your concerns or represent you in employment related disputes.

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